Re Di Benigno

• Jurisdiction: Italia
• Date: 21 Marzo 1981
• Court: Regional Tribunal (Italy)

Italy, Tribunal of Bari.

Re Di Benigno

Jurisdiction Personal Crimes committed on board ship Alleged negligence by Italian officer on board Italian merchant ship in Spanish territorial waters Whether jurisdiction of flag State exclusive Brussels Convention on Penal Jurisdiction in Matters of Collision or Other Incidents of Navigation, 1952

Sea Ships Crimes committed on board ship Jurisdiction of flag State The law of Italy

Summary: The facts:The Frigo-Giulia, an Italian ship sailing from Bulgaria to Nigeria, sank in Spanish territorial waters off Allegranza, an island belonging to the Canary Islands archipelago. Following an enquiry by the Italian Ministry for Merchant Shipping, Di Benigno, the second officer of the ship, was charged with negligent conduct and failure to obey his captain's orders and was brought to trial in Bari. The defendant contended that the action should be dismissed because, under Article 9 of the Italian Criminal Code, a request from the Minister of Justice was necessary for the prosecution of crimes committed by Italian citizens abroad and no such request had been made.

Held:The defendant's plea was rejected and he was convicted.

Article 7(5) of the Italian Criminal Code was applicable. Under this provision, Italian nationals could be prosecuted for crimes committed abroad without the need for a request from the Minister of Justice, if the applicability of Italian law to their crimes was provided for in special provisions of law or in international conventions. In the present case, the Brussels Convention for the Unification of Certain Rules relating to Penal Jurisdiction in Matters of Collision or Other Incidents of Navigation, 1952, applied. Under the Convention, in the event of incidents of navigation, criminal or disciplinary proceedings could only be instituted before the judicial or administrative authorities of the flag State. Thus the condition set out in Article 7(5) of the Criminal Code was fulfilled because an international convention expressly stipulated the applicability of Italian criminal law.

The following is the text of the relevant part of the judgment of the Court:

[The Court, in considering the plea of the defendant concerning the applicability of Article 9 of the Italian Criminal Code, stated that the first question to be examined was whether the offence had been committed in foreign territory, in which case Article 9 would apply. It observed that, under Italian law, Italian ships were regarded as part of...